Gay marriage ban ousted

Published 9:48 pm, Tuesday, February 7, 2012

LOS ANGELES — A federal appeals court panel ruled Tuesday that a voter-approved ban on same-sex marriage in California violated the Constitution, all but ensuring that the case will proceed to the U.S. Supreme Court.

The three-judge panel issued its ruling Tuesday morning in San Francisco, upholding a decision by Judge Vaughn R. Walker, who had been the chief judge of the U.S. District Court of the Northern District of California but has since retired.

The panel found that Proposition 8 — passed by California voters in November 2008 by a margin of 52 percent to 48 percent — violated the equal protection rights of two same-sex couples that brought the suit.

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But the 2-1 decision was much more narrowly framed than the sweeping ruling of Walker, who asserted that barring same-sex couples from marrying was a violation of the equal protection and due process clauses of the Constitution. The two judges in this case stated explicitly they were not deciding whether there was a constitutional right for same-sex couples to marry, instead ruling that the disparate treatment of couples under California law since the passage of Proposition 8 violated the Equal Protection Clause of the Constitution.

"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different people differently," Judge Stephen Reinhardt wrote in the decision. "There was no such reason that Proposition 8 could have been enacted.

"All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation 'marriage'," the judge wrote.

Supporters of Proposition 8 can now ask for a larger panel of the U.S. Court of Appeals for the 9th Circuit to take up the case. But they could also choose instead to appeal the case directly to the Supreme Court.

The decision was the latest victory by same-sex marriage proponents here since losing at the polls four years ago and sets the stage for what they've wanted: a fight before the Supreme Court.